The First Amendment of the United States Constitution (U.S. Const. amend. I) provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This short sentence containing what is known as the Establishment Clause and the Free Exercise Clause, has been the source of a large body of law and scholarly commentary.In Hosanna-Tabor Evang. Luth. Church v. EEOC, 565 U.S. ___, (No. 10-553) (2012), which has been described as the most significant religious liberty decision of the last two decades, the U.S. Supreme Court last week handed down a decision surprising in both the breadth of its sweep and the unanimity of its conclusions. The Court’s opinion, written by Chief Justice Roberts, concluded that “both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.” Although this so-called “ministerial exception” had been endorsed by most of the federal courts of appeal, the Supreme Court was addressing the issue for the first time.
Cheryl Perich had been a teacher at the school in Redford, Michigan, that was operated by a Lutheran synod. She claimed that she had been fired from her position as a teacher at the school because she had threatened an employment discrimination claim based on a disability, namely, narcolepsy. (Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U.S.C. §12101 et seq.). Ms. Perich argued that she was employed as a teacher and taught mostly secular subjects, although she occasionally also taught religious classes and attended chapel with her class.
The Court noted courts of appeal that have addressed the issue have uniformly recognized the existence of the “ministerial exception” have applied the First Amendment to preclude application of employment discrimination legislation to claims concerning the employment relationship between a religious institution and its ministers. The Court commenced its opinion stating that it agreed there was such an exception. By imposing an “unwanted minister on a church, the state was interfering with the group’s right to shape its own faith and mission through its appointments.” Moreover, the Court concluded that granting the state the power to intervene in such decisions would violate the Establishment Clause which prohibits government involvement in such ecclesiastical decisions.
Endorsement of a “ministerial exception” by the Supreme Court seemed very probable. The question in the minds of court watchers was how broadly would the Court would apply this exception? The answer is quite broadly. Rejecting arguments by the EEOC (Brief for the Fed. Resp’t in Opp’n, Hosanna-Tabor Evang. Luth. Church v. EEOC) and the Obama administration, the Court concluded that it will look at a number of broad factors in determining whether an employee is a “minister,” and will not be guided by a “stop watch.” Justice Alito, in a concurring opinion, wrote that the “exception” should apply to any “employee” who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or “serves as a messenger or teacher of its faith.”
Although characterized as the “ministerial exception” in the opinions of the federal courts, and now the Supreme Court, the exception clearly extends to a much broader category of employees than what would commonly be regarded as “ministers” of religion. In the words of the Chief Justice, Ms. Perich’s job duties, although predominantly secular, nonetheless “reflected a role in conveying the church’s message and carrying out its mission.” If an employee falls into this broad category, state, federal, and other employment discrimination statutes and regulations are probably inapplicable to employment decisions affecting such employees. Moreover, once an employee has been classified as a “minister,” the amount of time devoted to pure religious activities seems to be of little concern.
Given the broad scope of this decision, and its unanimity, we can expect religious organizations will now be claiming exemption from employment discrimination laws in more instances than has happened in the past and with greater success.